' SAJJAD ALI SHAH, C J.---This direct appeal is filed under section 67(3) of the Representation of the People Act, 1976 against the decision dated 24-4-1995 of Election Tribunal, whereby election petition filed by respondent No,1 herein namely Ijaz Ahmad Cheema is accepted and in the result election of National Assembly Constituency NA-87, Sialkot-3 is set aside unseating appellant before us, who had won the election and declaring in his place respondent No,1 as elected by majority of 85 votes.
2. Briefly stated the relevant facts in the background of the case are that for the seat of National Assembly mentioned above appellant herein and two respondents impleaded in this appeal contested in the election held on 6-10-1993 and in the result appellant won having secured largest number of votes of 69559 while respondent No,1 secured votes 69168 and respondent No,2 got 2945 votes. It was, therefore, clear that appellant had won the election by margin of 391 votes.
Feeling dissatisfied respondent No,1 filed application before Returning Officer for recount of the ballot papers, which was rejected after hearing both parties vide order dated 11-10-1993 on the ground that no particular instance was quoted and allegation was general in nature induced by the fact that election had been won by very thin margin. Similar application was filed before Election Commission of Pakistan which was dismissed after hearing counsel for both parties vide order dated 16-10-1993 with last paragraph, which is relevant, is reproduced as under:-- "We have heard Khawaja Abrar Majal, Advocate, for the applicant and the respondents at length.
Number of specific allegations were raised which were not agitated before the Returning Officer.
We do not hold that these allegations are afterthought but we are of the view that the allegations now being agitated before us are a proper subject-matter of determination in an Election petition and thus, we do not find it a fit case for recount.
' However, the applicant may, if so advised, file an election petition before the Election Tribunal under section 52 of the Representation of the People Act, 1976.
' This application is, therefore, dismissed."
3. Respondent No,1, Ijaz Ahmad Cheema then filed election petition alleging therein corrupt practices and further pin-pointing defects and lapses in the manner of counting in the tabulation and preparation of consolidated statement of the results. Written statement was filed by the appellant in which allegations have been denied and termed as afterthought as they were not reflected in the first application filed before the Returning Officer, in which the only ground taken was that respondent No,1 suspected that counting was not proper.
4. After the filing of the written statement, and during the pendency of the proceedings before Tribunal, application was filed on 9-2-1994 on behalf of respondent No,1, praying for recount of all the ballot papers on several grounds mentioned therein to the effect that some excluded ballot papers were not placed by the Presiding Officer in the prescribed envelope; Returning Officer opened envelopes which he was not supposed to open, statement of count of Polling Station No,10 was not signed by the Presiding Officer and consolidated statement of the result of the count was not prepared in time as required, and some postal ballot papers were wrongly rejected. Application for recount was opposed in writing by the appellant before us in which the allegations ware denied and relevant paragraph therefrom is reproduced as under:-- "The present application is nothing but is an act like putting cart before the horse. There should be valid grounds fully proved to the satisfaction of the Hon'ble Tribunal after leading evidence before such a request could be made."
5. After hearing the counsel for both parties Tribunal passed order on 12-7-1994 allowing application and summoning the bags containing ballot papers for the purpose of recount. In the said order paragraph 10, which is relevant, is reproduced as under:-- "Learned counsel for the petitioner during arguments expressed desire that the petitioner does not want to press any other ground excepting recounting of the ballot papers and that sufficient material has been placed on record in the form of result of count by the Returning Officer and the notes appended therewith for justifying recounting of all the ballot papers. Argument has force because the controversy which has been raised and introduced by the said notes given by the Returning Officer can only be resolved by recounting of all the ballot papers in order to do complete justice in the case."
6. It also appears from the order of allowing the recount that a request was made by Mr.S.M. Zaffar, counsel for appellant before us for examination of Returning Officer, which was necessary to remove ambiguity if there was any but that request was declined. In compliance of the order of the Tribunal recount was done and report dated 28-8-1994 was prepared and submitted before Tribunal by Mr. Tariq Latif, Provincial Election Commissioner, Punjab, along with a self-contained statement indicating valid votes cast in favour of each candidate, rejected ballot papers and the disputed ballot papers as Annexure 'A'. It may be added that both parties applied for and secured certified copies of the report of recount.
7. It appears from the record that on 24-11-1994 counsel for respondent before the Tribunal and appellant before us filed three Civil Miscellaneous Applications Nos.2, 3 and 4 of 1994, praying as stated under.
' Complaint in C.M. No,2 of 1994 is that party who had made the application sought to prove massive interpolation in the election record in connection with recount in conspiracy with officers of Election Commission. It was specifically alleged in the application that double stamps were affixed on the ballot papers. In order to prove the allegations list of 57 witnesses was annexed and 32 affidavits were also appended. Prayer clause in the application is reproduced as under:-- "In view of the above, it is prayed that permission be granted to the applicant to produce evidence as per list attached above prior to scrutiny of results as per report dated 28-8-1994 submitted by Mr. Tariq Latif, Provincial Election Commissioner, Punjab to the Tribunal."
8. In C.M. No,3 of 1994 it was alleged that in the recount have been found ballot papers with national identity card numbers and serial numbers of the voters' list noted on the back rendering such ballot papers as invalid and liable to be excluded from the count on the ground that sanctity of the secrecy of the vote is violated. The number of such ballot papers is given as 736.
9. In C.M. No,4 of 1994, the allegations are with regard to the interpolation in the record of election at the time of recount or before the recount and in paragraph 7 it is specifically stated that Tribunal should allow opening of the packets and counterfoils and thereafter to make recount. Prayer clause in the application is reproduced as under:-- "In view of the above, it is prayed as follows:-
(i) An order be made in exercise of powers under section 46 of the relevant Act for opening of the packets and counterfoils and certificates.
(ii) Applicant may be permitted to inspect counted ballot papers.
(iii) Opportunity may be given to the applicant after the aforesaid inspection to adduce evidence to establish that election material was tempered with pursuant to criminal conspiracy in such a manner as to show that the defeated candidate had obtained more votes on recount."
10. As against three applications mentioned above, three replies in writing trepidation are denied and stand is taken that it is not necessary to record evidence of the witnesses, who are named in the list annexed with the applications for the reasons that they did not file affidavits earlier in point of time before the recount and such deponents are active political workers of appellant before us.
11. Learned Judge of the High Court presiding over Election Tribunal has vide final decision impugned herein upheld result of the election of the constituency in dispute in consequence of report of recount which was ordered by him during the hearing of the petition before him and has also dismissed three miscellaneous applications filed by appellant before us which are mentioned above without allowing the request of appellant before us of producing the witnesses for examination in support of proof of assertions made in those applications. We are not satisfied with the reasons assigned by the Tribunal for summary disposal of these applications without allowing recording of evidence. Adverse comment is made in the impugned decision on the affidavits of Syed Asghar Abbas, Babar Khan and Asif Mahmood Butt without their being produced in the Court for cross-examination. Affidavits of these three witnesses were not believed for the reason that they remained quiet from the date of polling till the date of recount ordered by the Tribunal. In this connection concluding paragraph from the impugned decision is reproduced as under:-- "After going through these depositions made by these persons in the affidavits I am of the firm view that they have been hired for giving evidence which on the face of it is obviously false. The depositions made in the affidavits do not inspire confidence rather it is a case of an attempt to fabricate the evidence. The acceptance of prayer of respondent No,1 to produce these persons as witnesses to give evidence of the facts disclosed in the affidavits would amount to nothing but to encourage perjury. C.M. Nos.2 and 3 of 1994 are hereby rejected."
12. Learned counsel for the appellant contended before us that appellant was unjustifiably shut out by the Tribunal from producing witnesses in support of assertions made by him in the applications which were filed by way of objections to the report of recount, which was ordered by the Tribunal.
Not only list of the witnesses was produced but some affidavits were also produced and we are of the view that in such circumstances applications should not have been disposed of or dismissed without recording the evidence and without calling the deponents who had filed their affidavits which were placed on the record. Needless to say that veracity or credibility of the witness is tested in the cross-examination and for that reason evidence should have been recorded in the manner which is prescribed under the law. If witness has not spoken the truth, the same can be divulged only when he is cross-examined on those lines and falsehood surfaces on the face of the record. A party should not be shut-out from producing witnesses on the ground that a large list of witnesses is furnished. The Court or the Tribunal can always control and supervise the B proceedings and stop parties from repeating evidence of the witnesses on the same point. In such a manner the Court or Tribunal can control the number of the witnesses if they attempt to depose on the same point.
13. Another important contention raised before us by the learned counsel for the appellant is that in the recount it transpired that 736 ballot papers were such on which there were markings of identification card numbers or serial numbers from the voters' list and is such circumstances those ballot papers had become identifiable with violation of secrecy of vote and were liable to be rejected by the Presiding Officer as contemplated under section 38(4) (c) of the Representation of the People Act, 1976. In support of preposition reliance has been placed on the cases of Mian Jamal Shah v. Member, Election Commission and others PLD 1966 SC I and Muhammad Anwar Butt v.
Election Tribunal, Daska and 3 others 1987 SCM R 933. On this premise it was submitted that if abovementioned ballot papers with markings are rejected then appellant still wins the election. We are not going into this contention for reason that we leave it open to the learned Tribunal to examine this contention at the proper stage after recording evidence in connection with disposal of three applications mentioned above. We, therefore, set aside the impugned decision and remand the case back to the Election Tribunal with direction that evidence should be recorded in connection with hearing of three applications mentioned above and thereafter the question with regard to ballot papers with identity card numbers and serial numbers be also attended to as is envisaged under the law. It is open to the respondent also to produce evidence in connection with hearing of the applications mentioned above. Tribunal is directed to complete the proceedings and announce final decision within two months from the date of receipt of this order.